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Winder v. Caldwell. 240; Leighton v. Wales, 3 M. & W. 545; 2 Poth. Obl. by Evans, 81, &c; Noble v. Bates, 7 Cow. 307; 2 Greenleaf on Ev. $$ 257, 258, 259, and cases cited; Van Buren v. Digges, 11 How. 461; Tayloe v. Sandiford, 7 Wheat. 17.

The points on behalf of the defendant in error, were —

First. That this act is not repugnant to the act of 1791, but is remedial, cumulative, and auxiliary. That it was designed to give a lien to every person who, whether under a parol contract, oral or written, or a contract under seal, should thereafter furnish materials for or do work upon any dwelling or other building in the city of Washington during its erection, for the owner or for the contractor.

That if the building was constructed by contract, no person who did work or furnished materials to such contractor, could have the lien, unless within thirty days after being so employed, he should give notice in writing to the owner, that he was so employed to work or furnish materials, and that he claimed the benefit of that act.

These points are presented in the 3d, 6th, 7th, 8th, 9th, and 10th exceptions.

1. The first sentence of the act of 1833, is in the most general and comprehensive terms. 7 B. & C. 613.

2. The second sentence expressly contemplates the case of a contract, and provides a remedy for those employed by the contractor.

There is no such provision in any one of the laws of Pennsylvania referred to by plaintiff, and under which the decisions of the courts of that State were made.

3. The act of 1791 expressly recognizes and provides for two sets of liens, the one by the contractor, the other by the work. men. So does the act of 1833.

4. The act of 1791, contemplated a statutory mortgage; provided for contracts of a certain description, viz. those in writing acknowledged before a justice, and recorded in the clerk's office within six months, and gave a remedy in equity.

This act is not repugnant to that. It extends the remedy and provides a new one, (not for those who have made their contracts and recorded them under the law of 1791,) but to all persons who have done work or furnished materials for the build. ing, without pursuing the remedy given by that law. It provides a different remedy. It gives an absolute lien in all cases, for two years, to be enforced upon a claim filed by scire facias or personal action; or if no claim is filed, then by personal action.

The act of 1791 provides a lien to commence from the date

Winder v. Caldwell.

of the contract, if recorded within six months. The act of 1833 gives a lien from the commencement of the work.

There is no repugnancy between them. The two provisions may well stand together, the latter as cumulative to the former. 3 How. 645-6.

They are both affirmative statutes, and such parts of the prior statute as may be incorporated into the subsequent one as consistent with it, must be considered in force. Id. 644-5.

They are in pari materia; they must be taken together as if they were one law. Id. 564.

A thing which is within the intention of the makers of the statute, is as much within the statute as if it were within the letter. Id. 565.

Here the intention cannot admit of dispute. It was to protect all who furnished skill, time, labor, or materials, to the erection of the building, without regard to the manner of their einployment. They might make their contract under the act of 1791, and obtain a remedy in equity under that act; or they might proceed under the law of 1833, and seek their remedy at law only. Both laws require a recording as notice. The law of 1833 has received this construction from its passage, and hundreds of mortgages now existing, rest upon it.

Unless it repeals the act of 1791 by necessary implication, it may be, merely affirmative, or cumulative, or auxiliary. 16 Pet. 362-3.

The more natural, if not necessary inference is, that the legis. lature intended the new law to be auxiliary to and in aid of the purposes of the old law, even when some of the cases provided for may be equally within the reach of each. Id. 363.

In construing an act, (and equally so in acts in pari materia, 3 How. 564, 2 T. R. 504,) if there are expressions not so large in one part as those used in another, but upon a view of the whole act they can collect from the more large and extensive expression of the legislature, their intention, it is the duty of the Judges to give effect to the larger expressions. Per Lord Tenterden, 7 B. & C.613.

A second law on the same subject does not repeal a former one without a repealing clause, or negative words, unless so clearly repugnant as to imply a negative. But if they be not so contrary or so repugnant that the last act expresses or implies a negative of the first, then they may continue to stand together. And if such be the case here, a mortgage of city prop rty, recorded in conformity with either law, would be valid. Many cases of this kind, very analogous, are cited in Foster's case, 11 Coke, 63, 64; 4 How. 53.

We contend that both acts are in force, and the parties may

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proceed under either. But if the act of 1833 repeals the act of 1791, we contend further that its provisions clearly embrace written contracts for construction.

Second. If the contractor or person who had done work or furnished materials for the owner, files his claim in the clerk's office, as provided by the act of 1833, within three months after the last work is done by him, under the same written contract, or under an implied contract, during the progress of the work, that claim will relate back to the commencement of the building and cover the work and materials mentioned in it and used in the erection of the building. 4th and 5th exceptions.

1. The language of the act is explicit. “Every ..... building hereafter constructed and erected, &c., shall be subject to the payment of the debts contracted for, or by reason of any work or materials found and provided by any person or persons, &c., employed in furnishing the materials for, or in the erecting and constructing such house or other building, before any other lien which originated subsequent to the commencement of such other house or building, &c.: Provided, That no such debt, &c., shall remain a lien on such house or other building, longer than two years from the commencement of the building thereof, unless, &c., a claim be filed within three months after performing the work or furnishing the materials."

It could not have been designed by the legislature to deprive a lumber-merchant of his lien, if there was an understanding between himself and the owner that he should furnish the lumber for the building from time to time, as it should be required, and it should occur, in the course of the erection of the building, that more than three months should elapse between filing one order and the giving of a new one.

2. If the work is done by contract, and there is an express or tacit understanding between the parties that alterations may be required by the owner and executed by the contractor during the progress of the work, it would be in direct violation of the spirit of the law, and the obvious intent of the legislature to deprive the contractor of his lien, unless he from time to time, and every three months recorded his claim.

3. The language of the act is, within three months after performing the work or furnishing the materials. This means, by the force of the terms, after performing the last work or furnishing the last materials used in the progress of the building; not that he shall record his claims toties quoties three months shall elapse. This would be requiring the party to accumulate costs, the thing the legislature designed to avoid, and to do a vain thing, which the law never requires.

4. Much more will this construction apply to a contract, as in

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this case, for work and materials for a building which contemplated eighteen months in its construction.

As to the pleadings.

1. No declaration is required on the appearance of the de. fendant to a scire facias under this act. In Blake v. Dodemead et ur. (2 Str. 775,) it is said there is no such thing as a declaration on a scire facias, the plea is to the writ, and narratio and breve in this case are the same.

Vaughn v. Floyd, 1 Sid. 406. The scire facias disclosed the facts on which it was founded, and required an answer from the defendant; it was said to be in the nature of a declaration.

Bank of Scotland v. Fenwick, 1 Exch. 796, (per Rolfe.) The declaration, in fact, sets out the writ, and is in the same form as the writ.

Nunn v. Claxton, 3 Exch. 715. Although called a declaration, it is “merely a mode of entering the writ on the record.”

See, also, Herd v. Brustowe, Cro. Eliz. 177; Tidd's Pr ic. 8th ed. 1140.

2. The nature of the relief intended, the object of the legislature to give a mortgage, and the writ being provided as notice of the action, the court may well, as the Circuit Court has heretofore, consider it as setting forth the facts on which it is founded, a narrative in the nature of a declaration, make it part of the record, and require the defendant to plead to it. The statute itself, in the second section, would seem to contemplate the same thing.

Second, as to the form of the judgment.

The writ is not to show cause why execution should not issue against the property mentioned in it, but to show cause why the court ought not to render judgment for the sum demanded upon the record aforesaid.

This is the conclusion of the declaration.

The judgment is responsive. It must be the same after the pleading “as in personal actions for the recovery of debts."

The judgment, then, is right. But the record being in the 'same court, the statute regulates the form and extent of the execution which may issue on that judgment.

Mr. Justice GRIER delivered the opinion of the court.

Caldwell, who was plaintiff below, entered into a contract with Winder, “ to furnish all the materials and do all the car. penter work required to a certain house to be erected in the city of Washington,” for the sum of ten thousand dollars. After the house was finished, the contractor filed a lien against the building, claiming this sum, together with sundry charges for extra work. A scire facias was issued to enforce this claim, and

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a trial had, in the course of which, numerous bills of exception were sealed by the court at the defendant's instance, which form the subjects for our consideration in this case.

1. The want of a declaration, though not the subject of exception below, has been urged here as an error. But we think this objection is without foundation.

A scire facias is a judicial writ used to enforce the execution of some matter of record on which it is usually founded; but though a judicial writ, or writ of execution, it is so far an-original that the defendant may plead to it. As it discloses the facts on which it is founded, and requires an answer from the defend. ant, it is in the nature of a declaration, and the plea is properly to the writ. In the present case the bill of particulars of the plaintiff's claim is filed of record under the statute which gives this remedy, and it is recited in the writ and thereby made part of it, so that any further pleading on his part, to set forth the nature of his demand, woald de wholly superfluous.

2. In the written contract between the parties, given in evidence on the trial, it is stipulated that the work is to be promptly executed, so that no delay shall be occasioned to the builder by having to wait for the carpenter's work ;” and also, " that in any and every case in which the carpenter shall occasion delay to the building the sum of twenty-five dollars per day shall be deducted for each and every day so delayed, from the amount to be paid by this contract."

The defendant, under a notice of set-off, offered to prove " that in consequence of the plaintiff's not being ready to put up his work according to said contract, delay was occasioned by him in the construction of the building of not less than three weeks ;” and also, “ that the work and materials found and provided upon and for the said building, were defective in quality and character, and far inferior in value to what said contract and specification called for."

The refusal of the court to permit such evidence to go to the jury, is the subject of the first two bills of exception.

The statute which authorizes this proceeding, gives the defendant liberty " to plead and make such defence as in personal actions for the recovery of debts." Had the plaintiff below brought his action of assumpsit on the contract, the right to make this defence cannot now be doubted. For, although it is true, as a general rule, that unliquidated damages cannot be the subject of set-off, yet it is well settled that a total or partial failure of consideration, acts of nonfeasance or misfeasance, immediately connected with the cause of action, or any equitable defence arising out of the same transaction, may be given in evidence in mitigation of damages, or recouped; not strictly

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